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2021 Supreme(MP) 112
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
Gurpal Singh Ahluwalia, J.
Ashwani Kumar – Appellant
Versus
State of MP – Respondent
CRR 2291 of 2020
Decided On : 13-01-2021
Advocate Appeared:
For the Appellant : Prashant Sharma and Siddharth Sharma
For the Respondent: Ravi Ballabh Tripathi, Panel Lawyer
Deposit of penalty and execution of power of attorney do not absolve criminal liability for illegal acts under the Mines and Minerals (Development and Regulation) Act, 1957 and the IPC.
Headnote:
Illegal Excavation - Criminal Liability - Mines and Minerals (Development and Regulation) Act, 1957, Section 21(4), Section 379 of IPC - Section 451/457 of CrPC
Fact of the Case:
The applicant's dumper was found transporting illegally excavated sand, leading to a criminal case under Section 379 of IPC and Section 21(4) of Mines and Minerals (Development and Regulation) Act, 1957. The applicant sought release of the dumper based on the deposit of penalty and a power of attorney executed in favor of the driver.
Finding of the Court:
The court held that the deposit of penalty and the power of attorney did not absolve the applicant from criminal liability. The power of attorney did not authorize the driver to commit criminal acts, and the dumper was considered crucial evidence and could not be released.
Issues: The main issues were the criminal liability of the applicant for the illegal transportation of sand, the relevance of the deposit of penalty, and the applicability of the power of attorney in absolving the applicant from criminal acts.
Ratio Decidendi: The court relied on the interpretation of relevant provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Code of Criminal Procedure. It emphasized that the deposit of penalty did not absolve criminal liability and the power of attorney did not authorize criminal acts.
Final Decision: The court dismissed the revision, upholding the rejection of the application for the release of the dumper under Section 451/457 of CrPC.
JUDGMENT :
Gurpal Singh Ahluwalia, J.
1. This Criminal Revision under Section 397 of the CrPC has been filed against the order dated 11/11/2020 passed by JMFC, Dabra, District Gwalior, by which the application filed by the applicant under Section 451/457 of CrPC has been rejected.
2. It is the case of the applicant that he is the owner of Ashok Leyland Dumper having registration No MP 07 GA 3687. A FIR has been registered at Police Station Billaua, District Gwalior in Crime No. 137 of 2020 for offence under Section 379 of IPC and under Section 21(4) of Mines and Minerals (Development and Regulation) Act, 1957 on the allegation that on receiving an information, the dumper was searched and it was found that 500 ft. sand was loaded in the dumper with 6 inch layer of dust/black-soil on the top of illegally excavated sand. It is submitted that the Mining Department has already compounded the illegal transportation of sand and a penalty of Rs. 89,375/- has already been deposited. It is further submitted that the applicant had executed a power of attorney in favour of the driver of dumper, namely, Anil Parihar giving full authority to operate the dumper and, thus, if any illegal act has been done by the holder of power attorney, then the applicant cannot be held vicariously liable. Accordingly, it is prayed that the dumper bearing registration No. MP07GA3687 may be released. The counsel for the applicant, in support of his contention, has also relied upon the judgment passed by the Supreme Court in the case of Sundarbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283.
3. Per contra, it is submitted by the counsel for the State that mere deposit of penalty would not absolve the applicant from his criminal liability. Further, the dumper was being used for illegal transportation of illegally excavated sand and the guilty mind of the applicant can be seen from the fact that the illegally excavated sand of 500 feet was hidden under the layer of 6 inch of black-soil in order to project that the dumper is carrying black soil and not sand.
4. Heard the learned counsel for the parties.
5. So far as the question of deposit of penalty is concerned, the same has been considered by the Supreme Court in the case of Jayant vs. The State of Madhya Pradesh by order dated 3rd December, 2020 passed in Criminal Appeal No. 824825 of 2020 (Arising from SLP (Criminal) Nos. 26402611 of 2020) and it has been held as under:-
"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:
(i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;
ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;
iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and
iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned Incharge/SHO of the police statio
